amnesty coding manual 05.27 - transitional justice · transitional!justiceresearchcollaborative!!!...

Transitional Justice Research Collaborative Amnesty Coding Manual May 2014 Principal Investigators: Professor Kathryn Sikkink University of Minnesota Contact email: [email protected] Professor Leigh Payne University of Oxford Contact email: [email protected] Project Team: Francesca Lessa, Ph.D Director University of Oxford Contact email: [email protected]

Gabriel Pereira, Ph.D. Assistant Director University of Oxford Contact email: gabriel.pereira@st-‐hughs.ox.ac.uk

Transitional Justice Research Collaborative This material is based upon work supported by the National Science Foundation (Grant No. SES-‐0961226) and the Arts and Humanities Research Council (Grant No. AH/1500030/1)

1

Table of Contents Section 1: Project Overview .................................................................................................................................................. 2 Background ............................................................................................................................................................................. 2 Scope of Project ..................................................................................................................................................................... 3

Section 2: Amnesty Coding Project .................................................................................................................................... 4 2.1 Definitions ........................................................................................................................................................................ 4 Amnesty ............................................................................................................................................................................... 4 Unit of Observation ......................................................................................................................................................... 5 Human Rights Abuse ...................................................................................................................................................... 5

2.2 Data Collection Strategy ............................................................................................................................................. 6 2.3 Coding Non-‐fit Amnesties .......................................................................................................................................... 7 Country Name .................................................................................................................................................................... 8 Year ........................................................................................................................................................................................ 8 Fit ............................................................................................................................................................................................ 8 Compliance with International Human Rights Law .......................................................................................... 8 Official Name of Amnesty Law or Proclamation ................................................................................................. 8 Previous Database ........................................................................................................................................................... 9 General Notes .................................................................................................................................................................... 9 Submit ................................................................................................................................................................................... 9

2.4. Coding “Fit” Amnesties .............................................................................................................................................. 9 Country Name .................................................................................................................................................................... 9 Year ........................................................................................................................................................................................ 9 Fit ............................................................................................................................................................................................ 9 Compliance with International Human Rights Law ....................................................................................... 10 Official Name of Amnesty Law or Proclamation .............................................................................................. 10 Previous Database ........................................................................................................................................................ 10 Date When Amnesty Has Force of Law ................................................................................................................ 10 Self-‐Amnesty Passed by Authoritarian Regime ............................................................................................... 10 Executive Decree ........................................................................................................................................................... 11 Legislative Act ................................................................................................................................................................ 11 Referendum ..................................................................................................................................................................... 11


2

Component of Peace Agreement ............................................................................................................................ 11 Other ................................................................................................................................................................................... 11 Time Period of Crimes Covered .............................................................................................................................. 11 Crimes Covered .............................................................................................................................................................. 12 Exclusion of any Specific Crimes ............................................................................................................................ 12 Mention of War Crimes ............................................................................................................................................... 13 Inclusion/Exclusion of Actors ................................................................................................................................. 13 Qualifying Processes .................................................................................................................................................... 13 Qualifying Procedures ................................................................................................................................................. 14 List of References .......................................................................................................................................................... 15 Location of Amnesty Law .......................................................................................................................................... 15 General Notes ................................................................................................................................................................. 15 Submit ................................................................................................................................................................................ 15

Section 3: Challenges Coding Project ............................................................................................................................. 15 3.1 Definitions ..................................................................................................................................................................... 15 Challenges ........................................................................................................................................................................ 15

3.2 Coding Instructions ................................................................................................................................................... 17 Name of the challenge ................................................................................................................................................. 17 Intent .................................................................................................................................................................................. 17 Category ............................................................................................................................................................................ 18 Outcome ............................................................................................................................................................................ 19 Description ...................................................................................................................................................................... 21 Date ..................................................................................................................................................................................... 21 Submission ....................................................................................................................................................................... 21

Section 4: Appendix ............................................................................................................................................................... 22

Section 1: Project Overview

Background Scholars and policymakers have recently advocated transitional justice as a means to strengthen both democracy and human rights protections. Transitional justice is defined


3

as a set of processes to address past human rights violations following periods of political turmoil, state repression, or armed conflict. It encompasses three main mechanisms—human rights prosecutions, truth commissions, and amnesty— along with lustration policies, reparations, institutional reforms, commemorative acts, and the construction of monuments and museums. Despite significant geographic and institutional variation, transitional justice mechanisms are assumed to share a common set of goals: avoid “repeating, reenacting, or reliving past horrors” (Bhargava 2000, 54); deter future violations; restore the dignity of citizens victimized by atrocity; and stabilize democratic rule.

The purpose of this part of the project is to detail as much information as is available on amnesties for human rights violations and challenges to those amnesty, by building on and deepening information that has been gathered in two previous collection efforts.

Scope of Project This coding manual includes both concept definitions and instructions for coding each of the amnesties included in our database. The manual is divided into three sections. The first one contains instructions for coding amnesties. This section is divided into two subsections as both non-‐fit amnesties and fit amnesties should be coded. The second section contains instructions for coding challenges to amnesties. The final section contains miscellaneous instructions related to style, references, and suggested sources.

Our sample of cases includes amnesties for human rights violations committed by state officers and non-‐state agents on behalf of state interests in countries under authoritarian rule since 1970. We broadly define amnesties as any legislative, constitutional, or executive provision granting impunity for human rights violations. This includes both institutional measures preventing prosecution for such crimes and pardoning those convicted of human rights violations.

We recommend that the coders familiarize themselves with this manual before starting the coding process. Then, while coding, the manual should be the only point of reference for coders.


4

Section 2: Amnesty Coding Project

2.1 Definitions

Amnesty The first step is to determine whether an amnesty fits our definition based on three factors: a) the timing of the crime during the authoritarian period; b) whether the crime amnestied involves human rights violations, and c) whether the perpetrator of the crime amnestied includes state authorities or individuals/groups working on behalf of the state, for example paramilitary groups.

(1) What is the time criterion?

The time criterion involves determining whether the amnesty cover crimes committed during an authoritarian period. Amnesties may be used to cover crimes prior to the authoritarian period or after the authoritarian period. If the amnesties are not for crimes that occurred during the authoritarian period, they are regarded as not fit. For an amnesty to qualify as fit, the crimes covered in the amnesty should have to do with the authoritarian regime prior to the transition. Refer to the “Case Summaries” document to see what the “Authoritarian Range” is for your country.

IMPORTANT NOTE: The “authoritarian range” is an estimate. Please use what you can find out about the case to determine whether amnesties for crimes committed on the border of these ranges are related to the authoritarian regime. If you have questions, please flag these queries on the “Fit Sheet” or in your coding sheet.

(2) What is the crime criterion?

The crime criterion involves determining whether an amnesty covers human rights violations. The amnesty does not have to explicitly say “human rights violations.” We define human rights violations as: violations of physical integrity, including the right not to be tortured, summarily executed, disappeared, or imprisoned for political beliefs. In some cases, these acts can be legally or rhetorically classified as war crimes, crimes against humanity, or genocide.

If you find amnesties for “political and common crimes,” we ask that you continue to probe the other criteria (time/actor) to determine if the political crime involves the appropriate time period and actor. If you still do not know, please flag the amnesty for further research to see if you find additional information that determines its inclusion/exclusion.


5

NOTE: We are NOT including amnesties for coups, corruption, failure to fulfill obligatory military service, release of political prisoners, or other political crimes that do not involve human rights violations.

(3) What is the actor criterion?

The actor criterion requires determining whether the crimes were committed by state agents or non-‐state agents on behalf of state interests. State agents include military, police, and authoritarian state political leaders. Amnesties for paramilitaries and other non-‐state agents associated with the state (e.g., clerics, media figures, businessmen) and working on behalf of the state should also be included. In addition, amnesties for crimes committed during civil conflict are included if the beneficiaries cover state agents or citizens associated with the authoritarian regime.

NOTE: We will NOT include amnesties for rebel forces, political opponents, political prisoners, political exiles, or those refusing to fulfill their military service, or other individuals/groups who fall outside the state agent or associated to state agent categories.

NOTE: When researching the actor, you must remember that during the authoritarian period, the authoritarian regime is a state actor. So, if an amnesty was granted before the transition, we are interested in those amnesties that are self-‐amnesties (that is, state actors—albeit authoritarian— granting an amnesty to state actors (themselves)). If an amnesty was granted after the transition, we are looking for those amnesties that are granted to the former regime (who were state actors at the time the crime covered in the amnesty was committed).

If you are not sure whether the amnesty law fits based on your preliminary assessment of these three criteria then flag your concern for further discussion with your research team. Only do this, however, if you have tried to use some of the sources listed on Section 3 below to find the missing information.

Unit of Observation The unit of observation for the amnesty dataset is the single amnesty law, which is identified by a name, e.g. Uruguay’s Expiry Law.

Human Rights Abuse For the purposes of the TJRC, human rights abuse(s) are violations of physical or personal integrity rights carried out by a state or agents of the state. Violations include


6

abuses such as extrajudicial killing, torture or similar physical abuse, disappearances, and political imprisonment.1

2.2 Data Collection Strategy The coding of amnesties and their challenges requires surveying a broad list of sources. We recommend the following sources as starting points. However, we do recommend looking for other sources that might contain specific information for particular amnesties and challenges. The recommended sources are:

1. “TJDB All Mechanism Descriptions” Excel document

2. Mallinder amnesty data base: http://www.incore.ulst.ac.uk/Amnesty/index.html

3. GLIN [Library of Congress]

• Go to http://www.glin.gov/search.action • Click on “More search options” • Fill in “Amnesty” in the “Subject Terms” box [GLIN offers English-‐language indexing] • Can search “All jurisdictions” [meaning all the ones GLIN has…] or select one from the dropdown menu of jurisdictions

4. General legal structures: [utility depends on the country]

Globalex -‐-‐ http://www.nyulawglobal.org/globalex/index.html

• Select Foreign Law Research • Select country of interest • Read guide for links to full-‐text databases of legislation, if any • Go to database; search [use Google Translate or legal dictionary]

5. UNHCR REFWORLD

Provides full-‐text Google-‐based searching of NGO reports, States parties’ reports to UN monitoring bodies, Concluding Observations of UN monitoring bodies, etc., that may contain references to amnesty laws

• Go to http://www.unhcr.org/cgi-‐bin/texis/vtx/refworld/rwmain • Select “Advanced Search”

1 See Wood and Gibney (2010) and Cingranelli and Richards (1999) for more information about physical integrity rights and related standard based measures.


7

• Try “amnesty law” “law on amnesty” • Can select particular countries via drop-‐down menus [“Country of origin,” while a refugee law is a term of art, it is used broadly in this database to refer to country of interest].

6. LexisNexis Academic

• Law review database Search example: amnesty law w/s Guatemala! [i.e., the phrase “amnesty law” in the same sentence as the word Guatemala or Guatemalan, also can search by reversing the order of these two terms]

• Lexis Nexis Academic Allnews database [includes foreign language news, though you can choose to search it separately] Search examples:

Amnesty law w/s Guatemala [i.e., the phrase “amnesty law” in the same sentence as the word Guatemala or Guatemalan, also can search by reversing the order of these two terms]

7. Google/Google Scholar – plug in the country and amnesty or the amnesty law number. Try a variety of orders and versions of the terms: i.e. ‘Guatemala amnesty,’ ‘amnesty Guatemala,’ ‘amnesty law Guatemala,’ ‘amnesty decree Guatemala.’ If the country’s official language is not English and you can speak that language, search the terms in that country’s official language.

2.3 Coding Non-‐fit Amnesties Using the online coding tool, select the appropriate answer to the “fit” and choose “no”. Then, follow the steps below:

Explain why this amnesty does not fit our criteria. Your description should mention one of the “time, crime, and/or actor” criteria. For example, for the 1970 amnesty from Haiti,enter “the amnesty covers a period prior to authoritarian rule, and crimes and actors linked to attempted coup d'etat.” Provide a description of the amnesty in the box called “Mechanism Description.” For the same example above, you should enter: “President Duvalier amnestied political prisoners


8

who had been sentenced to death for plotting to overthrow the government in 1968. Their death sentences were commuted to 20 years in prison.” Fill the text boxes and select the appropriate options from the drop-‐down menu on www.transitionaljusticedata.com.

Country Name “What is the country name?” Country name is the name of the country that is the focus of the amnesty law. Coders choose country name from drop down menu.

Year “What is the year of enactment of the amnesty law?”

Fit “Does this amnesty law fit all three of our criteria?”

Yes No

Compliance with International Human Rights Law “Does this amnesty law comply with international human rights law?”

Sometimes amnesties include stipulations that prevent some people from receiving indemnity if they committed acts of genocide, crimes against humanity, etc. Does this amnesty include such stipulations?

Yes No

Official Name of Amnesty Law or Proclamation “What is the official name of the amnesty? Sometimes these laws have names (e.g., Uruguay’s Expiry Law) and sometimes they simply have numbers (e.g., Honduras’s “Decree Law 87-‐91”). They may have both. Provide as much information as possible (full name in original language and translation, law code number, etc.) so that the law can be traced.

If this is a pardon, it likely will not have a name. You can identify it by the name of the beneficiary of the pardon.


9

Previous Database “Was this amnesty law included in a previous database?” Register whether this amnesty was included in TJDB, Louise Mallinder’s dataset, or both.

General Notes Please include any additional notes you think are necessary.

Submit Once the form is complete, click on the “Save Amnesty and View Challenges” button.

On the “challenges” page, simply click “done” (next to the green arrow). We are not collecting data on challenges for amnesties that are NOT a fit.

2.4. Coding “Fit” Amnesties Using the online coding tool, select the appropriate answer to the “fit” and choose “Yes”. Then, follow the steps below

Provide a description of the amnesty in the box that appears below called “Mechanism Description”. For example, for the 1995 South African amnesty you should include the following: “The Act 34 of 1995 creates a ‘Committee on Amnesty’ in charge of reviewing, granting and rejecting individuals' application for amnesties.” Fill the text boxes and select the appropriate options from the drop-‐down menu on www.transitionaljusticedata.com.

Country Name “What is the country name?” Country name is the name of the country that is the focus of the amnesty law. Coders choose country name from drop down menu.

Year “What is the year of enactment of the amnesty law?”

Fit “Does this amnesty law fit all three of our criteria?”

Yes No


10

Compliance with International Human Rights Law “Does this amnesty law comply with international human rights law?”

Yes No

Sometimes amnesties include stipulations that prevent some people from receiving indemnity if they committed acts of genocide, crimes against humanity, etc. Does this amnesty include such stipulations?

Official Name of Amnesty Law or Proclamation “What is the official name of the amnesty? Sometimes these laws have names (e.g., Uruguay’s Expiry Law) and sometimes they simply have numbers (e.g., Honduras’s “Decree Law 87-‐91”). They may have both. Provide as much information as possible (full name in original language and translation, law code number, etc.) so that the law can be traced.

If this is a pardon, it likely will not have a name. You can identify it by the name of the beneficiary of the pardon.

Previous Database “Was this amnesty law included in a previous database?” Register whether this amnesty was included in TJDB, Louise Mallinder’s dataset, or both.

Date When Amnesty Has Force of Law “On what date did the amnesty have force of law?” At times the enactment process (see below) involves several stages, each with different dates, until it has final ratification and legal power. Try to provide the date by which it has force of law and not just the final stage of the approval process, if these two dates are different. For example, the date for the 1986 Argentine amnesty is the enactment date, December 23, 1986.

Self-‐Amnesty Passed by Authoritarian Regime Does the amnesty issued by the authoritarian regime cover crimes committed by state actors (albeit authoritarian rulers) during the authoritarian period pre-‐transition, so that amnesty would fit our criteria? Choose one of the following:

Yes-‐Date Known (then specify date as mm/dd/yy); Yes-‐Date Unknown No


11

Executive Decree Was this amnesty created by executive decree? Choose one of the following:


Legislative Act Was this amnesty created by a legislative act? Choose one of the following:


Referendum Was this amnesty created by a referendum? Choose one of the following:


Component of Peace Agreement Was this amnesty a component of a peace agreement? Choose one of the following:


Other Was this amnesty a component of a peace agreement? Choose one of the following:


Time Period of Crimes Covered What was the time period of the crimes covered by the amnesty? Choose one of the following:

• Specific time periods (then fill in crime start date and crime end date as mm/dd/yy or select the “unspecified” option if dates cannot be obtained);

• General (if no time period stipulated); • Exclusion of any specific periods (then please use the text box to provide information

on periods explicitly excluded from the scope of the amnesty);


12

• Unknown. Please include the most complete information you can on the time period covered by the amnesty law.

Crimes Covered Please fill in the text box with specific wording or phrasing used in the amnesty law. You will likely include the relevant articles of the law. If that is not possible, please use secondary sources that may provide such details.

You must include references for both the original amnesty law articles and secondary sources you reference For example, for the 1995 Peruvian amnesty you should enter:

“It applies both to common or military crimes, whether under the jurisdiction of civil or military courts.” All crimes ranging from murder and rape to robbery and fraud are thus included. Covers inter alia acts of torture, forced disappearances, and extrajudicial executions (Mallinder Amnesty Law Database Translation Peru 1995 Amnesty). Absolves from criminal responsibility and...from all forms of accountability, all military, police and civilian agents of the State who are accused, investigated, charged, processed or convicted of common and military crimes for acts occasioned by the war against terrorism from May 1980 until June 1995 (Amnesty International 1996b).”

If this information is unknown, please check the “unknown” box.

Exclusion of any Specific Crimes Please list any crimes that are not covered by the law. Be sure to specify whether the exclusion is contained in the law itself, or whether courts or other bodies have interpreted it as an exemption.

You must include references for both the original amnesty law articles and secondary sources you reference.

For example, for the 1995 Amnesty from South Africa you should enter: “Article 20.3.f established that the amnesty “does not include any act, omission or offence committed by any person referred to in subsection (2) who acted: (i) for personal gain: provided that an act, omission or offence by any person who acted and received money or anything of value as an informer of the State or a former state, political organization or liberation movement, shall not be excluded only on the grounds of that person having received money or anything of value for his or her information; or (ii) out of personal malice, ill-‐will or spite, directed against the victim of the acts committed.”


13


Mention of War Crimes Please select one of the following options from the drop-‐down menu:

Yes (Then, include additional information in the text box about where war crimes are mentioned in the law’s text) No

Inclusion/Exclusion of Actors For each of the actors listed in this section (military, opposition/political group, etc.), please select one of the following from the drop-‐down menu:

• Covered (provide additional information such as the relevant article(s) in the amnesty law that outline the beneficiaries and/or relevant secondary sources providing this information).

• Excluded (provide additional information such as the relevant article(s) in the amnesty law that outline those actors that are excluded and/or relevant secondary sources providing this information)

• Unknown (if no mention is made of this actor within the amnesty law, choose this option)

For example, for the 1987 amnesty law from Argentina you should enter:

“Article 1 excludes individuals by rank. Particularly, Article 1 excludes individuals occupying the position of Commander in Chief, Chief of Zone, Chief of Sub-‐zone, or Chief of Security, Police or Prison Forces.”

Moreover, the same article in second paragraph establishes exclusion for other higher ranks depending on a time limit. In that sense, it excludes other higher ranks apart from the above mentioned only if judicial authorities rule within 30 days of the passage of this Law that those officers of higher rank made decisions of their own or took part in the formulation of orders.”

Again, when referencing particular primary or secondary sources, please follow the instructions at the end of this document.

Qualifying Processes Please explain in this text box if the amnesty law establishes specific procedures that must be followed by individuals applying for amnesty. Please note in this box any conditions required of individuals/groups to become beneficiaries of the amnesty.


14

Please list the relevant articles from the text of the law or secondary sources as appropriate.

For example, for the 1995 Amnesty law from South Africa you should enter:

“The TRC Act created a ‘Committee on Amnesty‘ in charge of reviewing, granting and rejecting an individual’s application for amnesty. It also established the formal and substantial requirements that individuals should fulfil.

Particularly, applications needed to be submitted in a timely fashion between December 14, 1995 and September 14, 1997. Article 18.1 states that: “Any person who wishes to apply for amnesty shall within 12 months from the date of the proclamation referred to in section 7(3), or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form.”

The proclamation mentioned by the article is the proclamation by which the President of the Republic appointed the TRC commissioners. This proclamation was made on December 13, 1995. This original deadline was subsequently move to May 10, 1997 and then to September 14, 1997 (Bois-‐Pedain, 1997).

Moreover, the TRC act established that eligibility for amnesty is based on two substantial preconditions. First, amnesty would be granted only to those individuals personally involved in a specific act with political objective. Secondly, applicants would need to make full disclosure of the relevant facts related to the crimes.

The text of Article 18.1 says: “If the Committee, after considering an application for amnesty, is satisfied that-‐

(a) the application complies with the requirements of this Act; (b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3); and (c) the applicant has made a full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence.”


Qualifying Procedures Please complete this text box by describing any executive, legislative, juridical or other institutional procedures that must occur before individuals/groups receive amnesty. Identify those institutional bodies and their procedures for determining eligibility for amnesty.


15

Please list the relevant articles from the text of the law or secondary sources as appropriate.


For example, the 1983 Guatemala Amnesty Decree 89-‐93 granted amnesty to individuals who presented themselves to civil authorities, testified to their crimes and took an oath pledging that they would no longer participate in subversive activities, surrendered their arms and ammunition or indicated where they were hidden (IACHR 1983).

List of References Please complete this text box by including the complete list of references used. Please order them alphabetically.

Location of Amnesty Law Please complete this text box by copying and pasting the text of the amnesty law if available; if in PDF, indicate a website with the relevant electronic link if available.

General Notes Please include any additional notes you think are necessary

Submit Once the form is complete, click on the “Save Amnesty and View Challenges” button.

Section 3: Challenges Coding Project

3.1 Definitions

Challenges When you have finished coding an amnesty, a new window will appear where you will document the “Challenges” for the amnesty you have just submitted.

Our definition of "challenges” to amnesty laws includes two levels. First, domestic attempts to either:

- Modify the legal scope of amnesty laws. These might include efforts to interpret the law in such a way to exclude from the amnesty law certain types of crimes, certain types of perpetrators, or the time period covered.


16

Or

- Cancel the legal effects of amnesties either retroactively, for the future, or both. Second, we look at international challenges, specifically challenges by inter-‐governmental organizations (IGOs), such as the Inter-‐American System or the UN System for the protection of human rights, and three international non-‐governmental organizations working on human rights (INGOs), ONLY Amnesty International, Human Rights Watch, and the International Centre for Transitional Justice. We do so to indicate pressures outside the domestic legal arena that may influence domestic actors' perspectives on the legal validity of the amnesty law. The assumption behind our definition of challenges is that amnesty laws are not always illegal, illegitimate, or invalid. Indeed, challengers may use courts to try to apply the law more effectively, i.e., to push courts to hear cases that should be prosecuted given the limited scope of the amnesty law. This is the case in Guatemala in which crimes of genocide, torture and forced disappearance are excluded from the amnesty’s scope. Also, we do not assume that all of these challenges will be fully successful. Therefore we separate out "intent" behind the legal challenge and "outcome" (see below). Legal strategies intended to obtain some sort of accountability but not aimed at the legal effect or validity of amnesties are excluded from our definition. Particularly, trials abroad are not coded because they, by nature, do not intend to cancel the validity of domestic amnesty laws. These trials are aimed instead, at holding perpetrators legally accountable outside the country when domestic amnesty laws block accountability. Thus, they are already counted in the trials data base as mechanisms that allow for the circumvention of amnesty laws. For example, decisions made in Mexican courts in 2000 in relation to the Argentine amnesties would not be counted because they recognize the legality of those laws and circumvent them by holding perpetrators accountable outside the country in courts that can try them. We also exclude from the challenges category cases in which trials are held but the amnesty laws prevent them from holding perpetrators accountable. The Truth Trials in Argentine courts during the 1990s should not be coded because they were allowed only to investigate the occurrence of human rights violations but not to convict perpetrators of those violations. Thus, the validity and scope of the amnesties were not in question.

In addition, our definition of challenge accounts for two different aspects of a challenge, its intent and its outcome. We are aware that a challenge might be intended to achieve a particular aim but its outcome might be different. For example, in October 1997, in


17

response to a constitutionality challenge to the Guatemalan 1996 National Reconciliation Law, the Guatemalan Constitutional Court ruled the law constitutional but interpreted the text of the law rigidly, narrowing its scope. Among other aspects, the court emphasized that crimes that qualified for amnesty had to meet a series of requirements delineated in the law.

All sources used are either primary (e.g., courts’ rulings and actual laws) or secondary (e.g., appropriate studies and confirmed newspaper articles) in order to discern the intent behind each challenge. The intent behind the challenges might not be stated explicitly in these sources but it might be inferred from them. In both cases, the references will be cited.

3.2 Coding Instructions If there is a challenge to the amnesty you are coding, click the “Add Challenge” button.

Note that you can add multiple challenges for one amnesty.

Once you select “Add Challenge,” a new page will load. Coding a challenge involves seven steps. Enter the following information:

Name of the challenge Please name the challenge providing a summary/overview of what the challenge is about, indicating the body where the challenge is taking place and its outcome. For example, “Executive enacts Law 18,831 restoring the State's punitive capacity and derogating the Ley de Caducidad.”

There is no need to include the date in this box as that information is requested below.

Intent By intent we refer to the original intention of the actors who brought the challenges before a given institution. Please be aware that we code here the intent of the challenge in relation to an amnesty rather in relation to broader ends, such as the pursuit of justice or political goals. Thus, you should code whether the intent is:

– Nullification: challenges aimed at cancelling the effects of an amnesty retroactively and for the future;

– Derogation: challenges aimed at cancelling the effects of an amnesty for the future;

– Interpretation: challenges aimed at narrowing the scope of the law via interpretation.


18

– International pressure: this applies only to challenges posed by INGOs. This refers to challenges aimed at drawing attention to specific amnesty laws that are in violation of human rights standards.

– Unknown or uncertain: it might be possible that the intention of a challenge is unknown or uncertain due to lack of appropriate sources or clarity.

Category You should code the challenge category, marking what institutions made the relevant decision in relation to the challenge. You should choose among the following categories:

– Executive. Please be aware that we are not coding cases in which an executive’s signature on a law is merely the final step in an enactment procedure. For example, the Argentinean amnesties were annulled by the Congress in 2003 under an enactment procedure that included the President’s sign off. This case should not be coded here. Thus, we code here cases in which the executive is the primary branch of government that challenges the law. An example of what should be coded here is the October 31, 2005 decree by the Uruguayan Executive maintaining that in the case of the disappearance of Washington Barrios Fernandez, the case at hand fell outside the remit of the Ley de Caducidad given the person disappeared outside Uruguay. . We also code here cases in which the Executive vetoes a bill passed by the Congress challenging the validity or modifying the scope of a law. Consider the following hypothetical example. A draft aimed at annulling the amnesty is passed by the Brazilian Congress but the President vetoes it. This case should be coded here given that the Executive made the relevant decision which validates the amnesty.

– Congress. Please be aware that here we code only cases in which the congress is the primary branch of government that challenges the law. An example of what should be coded here is the law passed by the Argentine Congress in 2003 annulling the Full Stop and Due Obedience laws.

– Judiciary. Please see below for further explanation; – Electoral process. Please code here decisions made via the electorate, for

example, referendum and plebiscites. For example, the Uruguayan 1989 referendum and 2009 plebiscite on the Ley de Caducidad fall into this category.

– International intergovernmental institutions, such as United Nations and regional human rights institutions, like the Inter-‐American Commission and Court. For example, the Barrios Altos Case ruling by Inter-‐American Court of Human Rights in 2001 declared that the Peruvian amnesty was in breach of international human rights standards.


19

– International human rights organizations. Please code challenges issued only by Amnesty International, Human Rights Watch, and the International Centre for Transitional Justice. Only official country or region reports should be coded here. Thus, you should not code, for example, press releases, urgent actions, news, or open letters.

If you chose “judiciary”, you will have to choose among the following:

- Lower Court, - Appeals Court; - High Court. Please be aware that by Supreme Court we mean the highest

instance of a given judicial structure empowered with final judicial review powers. Thus, that includes, for example, supreme courts and constitutional courts.

Please, be aware that when legal cases reach the last instance of the judicial structure you will have to code each decision of any judicial instances as separate challenges. In other words, each judicial decision in the same legal case is counted as a separate challenge. For example, the Poblete legal case was brought to courts in Argentina. The case went through all the judicial instances of the Argentine system. Thus, the three instances should be marked. Other judicial systems may follow different procedures and constitutionality cases may go directly to the Supreme Court.

Outcome For domestic challenges, you should select one of the four categories of outcomes (For international challenges see below):

– Nullification: decisions cancelling the effects of an amnesty retroactively and for the future. For example, the Argentinean Supreme Court’s decision ruling unconstitutional the Due Obedience and Full Stop laws in 2005 falls into this category;

– Derogation: decisions cancelling the effects of an amnesty for the future. For example, the derogation Law passed in 2011 by the Uruguayan Congress falls into this category as it cancels the effects of the law for the future;

– Validation: decisions validating an amnesty explicit or implicitly. By explicit validation we refer to any decision containing a statement declaring an amnesty valid. For example, the Brazilian Federal Supreme Court’s decision rule in 2010 validating the Brazilian amnesty falls into this category. By implicit validation we refer to a decision which, although it does not contain any statement referring to the


20

validity of an amnesty, has the effect of maintaining the legal effects of an amnesty and the status quo. For example the failure to enact an interpretative law in Uruguay in 2011 – although it did not mean the endorsement of the amnesty – still resulted in the Ley de Caducidad remaining in force.

– Interpretation: decisions interpreting the law’s scope This category does not include instances in which the amnesty was interpreted not to apply simply due to the context of a particular case.

– Pending: we are aware that we might find challenges whose outcomes have not happened at the moment of the coding. Therefore, the outcome is still pending. In these cases, select this option and please make sure you record under the description of the challenge that its outcome is pending and please outline its status in detail. For example, consider the following hypothetical example. A bill nullifying the amnesty law in Peru is being discussed at the time of the coding. In this case, this challenge is still going through the legislative process and it has not yet reached a final outcome. In this case you should record the status of the bill, for instance whether it has been approved by Senate and is pending in the Chamber of Deputies, or if it has been approved by Congress but it remains pending before the executive for final sign off.

– International pressure: when coding the outcome of international challenges please be aware they entail non-‐enforceable decisions or opinions. Under this heading we include decisions and reports by INGOs and IGOs.

When the type of outcome is nullification, derogation or interpretation and the institution involved is the judiciary, you should not code as challenges legal lower judges’ decisions producing the same outcome already produced by the highest legal authority within a country’s particular legal system. From an analytical perspective, these legal decisions are not regarded as challenges. Rather, these are regarded as decisions enforcing a previous challenge. By “highest legal authority” we refer to when a court’s decision in a case becomes legal precedent. Usually, this occurs in a High Court (Supreme Court, Constitutional Court, etc), but it might also occur in an Appeals Court. Whether a judicial decision is a legal precedent needs to be assessed according to the legal features of a given country (please be aware that in some civil systems, precedents are not formally recognized as having a de jure binding force. However, in such a system, the High Court’s precedents have a de facto binding force and are followed by lower courts). We refer to “decision or decisions” because, hypothetically, a later decision might complement a previous one. For example, although the Supreme Court of Argentina ruled the 1986 and 1987 amnesty laws unconstitutional in the 2005


21

Poblete case,,, immediate subsequent legal actions included unconstitutionality claims against the laws. This is due to the particularities of the Argentine system in which, as in many Latin American legal systems, the Supreme Court’s decisions are formally regarded to be valid only for the particular case in question. As a consequence,, Argentine lower judges ruled on the unconstitutionality of the amnesties in each case brought to them, following the decision of the highest legal authority, the Supreme Court’s ruling in the Poblete case. In this example, lower courts decisions are coded as challenges until the Supreme Court’s decision on Poblete. After that decision, however, any lower court decision grounded on the Poblete ruling would not be coded as a challenge.

Description Please provide all the information relating to this challenge; including who brought about the challenge, and the arguments used to challenge the amnesty. Please be aware that even if laws are challenged, they may endure. In other words, we are not asking for only successful challenges, but all attempts to weaken the amnesty law whether successful or not. Even so, we ask that you also include information about the success or failure of particular challenges.

In this text box, please list the primary and secondary sources used to gather this information.

Date Please provide the month and year of the challenge, add the day if that information is known.

Submission Once the information on the challenge is complete, choose “Save Challenge.”

A new page will load. Next, you can:

• Choose “Modify” if the summary information of the challenge you just added is incorrect

• Choose “Add Challenge” if an additional challenge must be added • Choose “Done” if you are ready to return to the main page • Choose “Modify this amnesty” if you have encountered new information that should

be added to the main amnesty information


22

Section 4: Appendix

Country Name COW ID Region Spell type Start End

Albania 339 Euro democratic transition 1990 1995 Albania 339 Euro autocratic reversion 1996 1996 Albania 339 Euro democratic transition 1997 2010 Algeria 615 MENA democratic transition 2004 2010 Argentina 160 Amer democratic transition 1973 1975 Argentina 160 Amer autocratic reversion 1976 1982 Argentina 160 Amer democratic transition 1983 2010 Armenia 371 Euro democratic transition 1991 1995 Armenia 371 Euro autocratic reversion 1996 1997 Armenia 371 Euro democratic transition 1998 2010 Azerbaijan 373 Euro democratic transition 1992 1992 Azerbaijan 373 Euro autocratic reversion 1993 2010 Bangladesh 771 Asia democratic transition 1972 1973 Bangladesh 771 Asia autocratic reversion 1974 2008 Bangladesh 771 Asia democratic transition 1991 2006 Bangladesh 771 Asia autocratic reversion 2007 2008 Bangladesh 771 Asia democratic transition 2009 2010 Belarus 370 Euro democratic transition 1991 1995 Belarus 370 Euro autocratic reversion 1996 2010 Benin 434 Africa democratic transition 1990 2010 Bolivia 145 Amer democratic transition 1982 2010


23

Brazil 140 Amer democratic transition 1985 2010 Bulgaria 355 Euro democratic transition 1990 2010 Burkina Faso 439 Africa democratic transition 1977 1979 Burkina Faso 439 Africa autocratic reversion 1980 2010 Burundi 516 Africa democratic transition 2005 2010 C Af Republic 482 Africa democratic transition 1991 2002 C Af Republic 482 Africa autocratic reversion 2003 2010 Cambodia 811 Asia democratic transition 1988 1996 Cambodia 811 Asia autocratic reversion 1997 1997 Cambodia 811 Asia democratic transition 1998 2010 Chile 155 Amer democratic transition 1989 2010 Congo (Brazzaville) 484 Africa democratic transition 1991 1996 Congo (Brazzaville) 484 Africa autocratic reversion 1997 2010 Cote d'Ivoire 437 Africa democratic transition 1999 2002 Cote d'Ivoire 437 Africa autocratic reversion 2003 2010 Croatia 344 Euro democratic transition 1999 2010 Czechoslovakia 315 Euro democratic transition 1989 1992 Czechoslovakia 315 Euro democratic transition 1993 2010 Dominican Rep 42 Amer democratic transition 1978 2010 DR Congo 490 Africa democratic transition 2004 2010 Ecuador 130 Amer democratic transition 1979 2010 El Salvador 92 Amer democratic transition 1982 2010 Estonia 366 Euro democratic transition 1991 2010 Ethiopia 530 Africa democratic transition 1994 2010 Gabon 481 Africa democratic transition 2009 2010 Georgia 372 Euro democratic transition 1991 2010 Germany 255 Euro democratic transition 1990 2010 Ghana 452 Africa democratic transition 1970 1971 Ghana 452 Africa autocratic reversion 1972 1977 Ghana 452 Africa democratic transition 1978 1980 Ghana 452 Africa autocratic reversion 1981 1995 Ghana 452 Africa democratic transition 1996 2010 Greece 350 Euro democratic transition 1974 2010 Guatemala 90 Amer democratic transition 1986 2010 Guinea-‐Bissau 404 Africa democratic transition 1991 2002 Guinea-‐Bissau 404 Africa autocratic reversion 2003 2004 Guinea-‐Bissau 404 Africa democratic transition 2005 2010 Haiti 41 Amer democratic transition 1990 1990 Haiti 41 Amer autocratic reversion 1991 1993 Haiti 41 Amer democratic transition 1994 1999 Haiti 41 Amer autocratic reversion 2000 2003 Haiti 41 Amer democratic transition 2004 2010 Honduras 91 Amer democratic transition 1980 2010 Hungary 310 Euro democratic transition 1989 2010


24

Indonesia 850 Asia democratic transition 1999 2010 Iran 630 MENA democratic transition 1997 2003 Iran 630 MENA autocratic reversion 2004 2010 Kenya 501 Africa democratic transition 2002 2010 Kosovo 347 Euro democratic transition 2008 2010 Kyrgyzstan 703 Asia democratic transition 2005 2010 Latvia 367 Euro democratic transition 1991 2010 Lebanon 660 MENA democratic transition 2005 2010 Lesotho 570 Africa democratic transition 1993 2010 Liberia 450 Africa democratic transition 2003 2010 Lithuania 368 Euro democratic transition 1991 2010 Macedonia 343 Euro democratic transition 1991 2010 Madagascar 580 Africa democratic transition 1991 2010 Malawi 553 Africa democratic transition 1994 2010 Mali 432 Africa democratic transition 1991 2010 Mauritania 435 Africa democratic transition 2007 2007 Mauritania 435 Africa autocratic reversion 2008 2010 Mexico 70 Amer democratic transition 1994 2010 Moldova 359 Euro democratic transition 1991 2010 Mongolia 712 Asia democratic transition 1990 2010 Mozambique 541 Africa democratic transition 1994 2010 Nepal 790 Asia democratic transition 1990 2001 Nepal 790 Asia autocratic reversion 2002 2005 Nepal 790 Asia democratic transition 2006 2010 Nicaragua 93 Amer democratic transition 1990 2010 Niger 436 Africa democratic transition 1991 1995 Niger 436 Africa autocratic reversion 1996 1998 Niger 436 Africa democratic transition 1999 2008 Niger 436 Africa autocratic reversion 2009 2009 Niger 436 Africa democratic transition 2010 2010 Nigeria 475 Africa democratic transition 1978 1983 Nigeria 475 Africa autocratic reversion 1984 1998 Nigeria 475 Africa democratic transition 1999 2010 Pakistan 770 Asia democratic transition 1973 1976 Pakistan 770 Asia autocratic reversion 1977 1987 Pakistan 770 Asia democratic transition 1988 1998 Pakistan 770 Asia autocratic reversion 1999 2006 Pakistan 770 Asia democratic transition 2007 2010 Panama 95 Amer democratic transition 1989 2010 Paraguay 150 Amer democratic transition 1989 1991 Paraguay 151 Amer democratic transition 1992 2010 Peru 135 Amer democratic transition 1979 1991 Peru 135 Amer autocratic reversion 1993 1999 Peru 135 Amer democratic transition 2000 2010


25

Philippines 840 Asia democratic transition 1986 2010 Poland 290 Euro democratic transition 1989 2010 Portugal 235 Euro democratic transition 1974 2010 Romania 360 Euro democratic transition 1989 2010 Russia 365 Euro democratic transition 1992 2010 Senegal 433 Africa democratic transition 2000 2010 Serbia (Yugoslavia) 345 Euro democratic transition 2000 2010 Sierra Leone 451 Africa democratic transition 2001 2010 Slovakia 317 Euro democratic transition 1993 2010 Slovenia 349 Euro democratic transition 1992 2010 South Africa 560 Africa democratic transition 1992 2010 South Korea 732 Asia democratic transition 1987 2010 Spain 230 Euro democratic transition 1975 2010 Sudan 625 MENA democratic transition 1985 1988 Sudan 625 MENA autocratic reversion 1989 2010 Taiwan 713 Asia democratic transition 1992 2010 Thailand 800 Asia democratic transition 1974 1975 Thailand 800 Asia autocratic reversion 1976 1977 Thailand 800 Asia democratic transition 1978 1990 Thailand 800 Asia autocratic reversion 1991 1991 Thailand 801 Asia democratic transition 1992 2005 Thailand 802 Asia autocratic reversion 2006 2007 Thailand 800 Asia democratic transition 2008 2010 Timor-‐Leste 860 Asia democratic transition 2002 2010 Turkey 640 MENA democratic transition 1973 1979 Turkey 640 MENA autocratic reversion 1980 1982 Turkey 640 MENA democratic transition 1983 2010 Uganda 500 Africa democratic transition 1980 1985 Uganda 500 Africa autocratic reversion 1986 2010 Ukraine 369 Euro democratic transition 1991 2010 Uruguay 165 Amer democratic transition 1985 2010 Zambia 551 Africa democratic transition 1991 2010 Zimbabwe 552 Africa democratic transition 2009 2010

amnesty coding manual 05.27 - transitional justice · transitional!justiceresearchcollaborative!!!...

Documents